How Domestic Violence Affects Child Custody in Virginia

Understanding the impact of domestic violence on child custody rights.

Flaring tempers and a parent’s momentary loss of control can have
long-term effects on a family, both emotionally and legally. When
parents argue in court over child custody, all the past abuse and
threats will be brought out into the open and may change custody
outcomes, including which parent receives custody of his or her child.

A
history of emotional or physical abuse, also called “domestic
violence,” often alters the outcome of a custody case and can lead to
the modification of a previous child custody order. In families where
there is a history of chronic domestic violence, the abusive parent may
have limits placed on his or her visitation, and in the most extreme
circumstances, may lose his or her parental rights completely.

Overview of Domestic Violence

Domestic
violence extends beyond physical abuse, such as bruises and scars, and
includes emotional abuse, sexual abuse and threats to harm another
person. Virginia defines domestic violence as an action by a family
member involving violence, force or threats which cause physical injury
or reasonable fear of physical injury to an adult or child. For purposes
of the domestic violence law, a family member includes:

current or former spouse

in-laws

persons who share a child, even if they live apart

roommates, and

persons who have lived together during the past year.

Resources domestic violence victims

If you or your child is victim of domestic violence, you can seek help through Virginia’s Guide for Domestic Violence Victims and the Family Violence and Sexual Assault Hotline (1-800-838-8238). Additionally, Doorways
is part of the Virginia Sexual and Domestic Violence Action Alliance
and offer shelters and additional support services for victims and their
children.

Protective orders

In situations where domestic
violence is ongoing or you fear additional abuse, a protective order may
be necessary to ensure the safety of you and your child. Virginia’s court website
provides an overview of protective orders. To obtain a protective order
form, contact your local county courthouse. If a judge determines that
abuse has occurred in your case and is likely to occur in the future,
your protective order will be granted.

Basics of Child Custody Orders in Virginia

In
determining custody arrangements, a court will focus on a child’s
emotional and physical best interests. Several factors, such as parental
stability and home environment are considered when determining a
child’s best interests.

Virginia courts generally prefer joint
custody arrangements, where parents share "physical custody" (where the
child lives) and "legal custody" (the right to make decisions regarding
the child's health, education and welfare). Nevertheless, a history of
domestic violence could influence a judge to deviate from a joint
custody arrangement and limit or restrict the abusive parent's
visitation with his or her child. To learn more about custody decisions
in Virginia, see, Child Custody in Virginia.

Impact of Domestic Violence on Child Custody Orders in Virginia

While
Virginia law does not prevent an abusive parent from exercising
visitation with his or her child, a history of domestic violence can
impact a parent’s custody and visitation rights. A single episode of
unreported domestic violence will likely not be as significant in
deciding custody as several recent convictions of domestic violence
would be when evaluating the best interests of a child.

If a judge
finds a history of domestic violence, an abusive parent could have
restrictions placed on his or her visitation rights, including
"supervised visitation" - where all visits with the child are supervised
by a third party. In cases of extreme or chronic domestic violence, a
judge could permanently terminate all parental rights to legal and
physical custody.

Supervised visitation

Supervised
visitation takes place between a parent and child in the presence of
another designated adult or at an authorized agency. While restrictive,
supervised visitation is not necessarily permanent - more often it's a
stepping stone toward unsupervised visitation between the parent and his
or her child. However, in cases involving domestic violence, a parent
would need to complete a domestic violence course and prove to a judge
that unsupervised visits would be in his or her child’s best interests.

Termination of parental rights

Unlike
supervised visitation, a termination of parental rights is permanent.
Once such an order is made, a parent’s good behavior cannot justify
having parental rights reinstated. However, this remedy is reserved for
the most serious cases - a Virginia court will not terminate a parent’s
right to visit with and otherwise parent his or her child except in the
most extreme circumstances. Some reasons a court may terminate parental
rights include extreme neglect of the child, habitual abuse of the
child, or sexual assault of a child.

If you have additional
questions about the effect of domestic violence on custody rights in
Virginia, contact a local family law attorney for advice.